But the article itself misses some key aspects in its criticism of deferred prosecutions. It fails to look at the net result of a prosecution with and without a deferred prosecution agreement. With a deferred prosecution agreement you have the company admitting to culpability, you have change in the company assured, you usually have monitors added to the organization to avoid future problems, and you obtain the entity's cooperation. Does the company suffer? Most definitely yes - they pay huge fines. For example, Seimens - 800 million; Daimler - 185 million; SnamprogettiNetherlands BV - 240 million. And the cost for this prosecution or threat of prosecution is low because the company is agreeing to pay the fine. On the other hand, if the case had gone to trial there is the risk of a not guilty verdict (e.g., WR Grace; Xcel Energy, Inc.). Even if the company is convicted it will have cost the US taxpayer a significant amount of money for the prosecution, and the net result will be - payment of a fine by the company. The reality that is missed in this NYTimes article is that corporations cannot be put in jail. And if you put the company out of business - like Arthur Andersen LLP then you are putting many innocent workers out of a job that they were doing honestly. And maybe it's OK if it's a civil matter, like Bank of America just paying 8.5 billion to settle its problem with the money going to investors.

Deferred prosecutions do have their problems. For example, many of the terms in the agreement are one-sided, the company often has no choice but to agree, and corporate executives can get thrown under the bus to save the company. (See my co-authored article here).

But calling the use of deferred prosecutions a "softer approach" is missing what gets achieved with deferred prosecutions.

Former Governor George Ryan brought a collateral attack, pursuant to 28 U.S.C. s 2255, following the Supreme Court's decision in Skilling. He argued among other things "that the jury instructions were defective because they permitted the jury to convict him on an honest-services theory without finding a bribe or a kickback." The district court, however, found his errors harmless. Interestingly the prosecutor conceded that despite Ryan not filing his 2255 motion within the one year time period, "2255(f)(3) restarts the time when a 'right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review,'" and Ryan met this standard. Did the government want this case heard because they want to find the contours of what is encompassed within Skilling?

The Seventh Circuit issued its opinion in which it states that "[c]ollateral review is not just a rerun of the direct appeal, in which a defendant can use hindsight to craft better arguments." They go on to stress the limits of collateral review. The court states that Ryan's "current argument that the jury instructions were defective because they did not track Skilling is novel." But they also state that "[i]f Ryan's lawyers had done what Skilling's lawyers did, the controlling decision today might be Ryan rather than Skilling. The bottom line is that the court holds that "[o]n the record at trial, a jury could have convicted Ryan of mail fraud using the legal standard set by Skilling."

Commentary: 1) Even white collar cases are seeing the problems created by limits to collateral attacks. 2) Skilling is certainly not like McNally was to mail fraud cases when the Court issued it in 1987.

It is not often that companies are criminally charged, and usually when it happens, regardless of the merits, we see the company enter a guilty verdict or enter into a deferred prosecution agreement (see here). But not Xcel Energy, Inc. and Public Service Company of Colorado. They were charged, they exercised their right to a jury trial, and were found not guilty after close to a month-long trial.

The Justice Department brought criminal charges against this Fortune 250 public company alleging safety violations - OSHA violations - in the deaths of five contractors at a hydro-electric power plant in Colorado.

Clearly this is an incredibly sad situation, with many families suffering and one cannot help but have the deepest sympathy for each person who has suffered here.

But one also has to wonder whether our criminal justice system should be used for prosecutions alleging OSHA violations from industrial accidents. Would these matters be better left for the administrative and civil process? And would our scarce resources be better spent educating companies on how best to keep workers' safe?

The company was represented by Cliff Stricklin, Chair of Holme Roberts & Owen's White Collar & Securities Litigation Group in Denver, Colorado. Stricklin also is an adjunct professor teaching white collar crime at University of Colorado School of Law.

DC white collar heavyweights Greg Poe and Preston Burton have joined forces to create Poe & Burton PLLC. It is a catchy name, although I prefer Greg and Preston's Excellent White Collar Adventure. Preston has represented many high-profile white collar defendants, including Aldrich Ames, Robert Hanssen, and Monica Lewinsky. Greg is the author of several impressive amicus briefs in cutting-edge cases, including Booker. He is currently representing a former Blackwater executive in an EDNC criminal case with national security implications. Combined they have litigated over 60 criminal cases to verdict. Good luck, guys.

Elliot Berke recently left his own practice to become a Partner at McGuireWoods LLP. Elliot is one of the most respected election law and government ethics compliance attorneys in the country. In the House of Representatives he served as Counsel to the Office of the Speaker and General Counsel to the Office of the House Majority Leader. He currently counsels individuals and entities regarding election and governmental compliance issues and represents individuals under investigation by Senate and House ethics panels and the DOJ. Elliot has been known to hang out at the Prime Rib-the true sign of a Washington insider.

My old friend Mike McCrum has just left big law to start the McCrum Law Office in San Antonio. For my money, Mike is the best white collar attorney in the Southwest. His biggest claim to fame was his spectacularly successsful defense of San Antonio criminal defense attorney Alan Brown against tax fraud charges brought by DOJ's Brenda Morris in her pre-Ted Stevens days. Mike's performance was masterful. After a six-week trial, the jury deliberated for 35 minutes (including bathroom breaks) and acquitted on all charges. Best of luck, my friend.